In a memorandum of appeal filed in the Federal Court, six Malaysian mothers said the majority on the Court of Appeal panel had erred in law and fact by failing to properly consider the effect of a 2001 amendment to Article 8(2) of the constitution.
The mothers are supported in the appeal by Family Frontiers, a registered society engaged in the advancement, promotion and strengthening of the family unit.
The appellants said the judges in the 2-1 ruling erred when concluding that the affected children were not entitled to Malaysian citizenship by operation of law under Article 14(1)(b) of the constitution.
They also said the two judges who formed the majority failed to apply an “organic”, “purposive”, “harmonious” and “prismatic” approach when reading the provision together with Section 1(b) of Part II of the Second Schedule to the constitution.
The appellants said the two judges also failed to consider that a literal reading would discriminate against the female gender, something expressly prohibited under the constitution.
They said the judges had fallen into error in their application of the “basic structure” doctrine to the factual and legal matrix of this case.
On Aug 5, justices Kamaludin Said and Azizah Nawawi ruled that the term “father” in Part 11 of the Second Schedule referred specifically to the biological father and cannot be extended to include the “mother” or “parents”.
The two judges said it was up to Parliament, not the court, to rewrite the constitution.
Justice S Nantha Balan, who dissented, said such an interpretation would make the mother’s bloodline look inferior to that of the father.
In doing so, the Court of Appeal overturned High Court judge Akhtar Tahir’s 2021 ruling that the term “father” also included “mother” and, therefore, the government was obliged to grant citizenship to children born abroad to Malaysian women.
On Dec 14, the Federal Court granted leave after approving three questions of law for its determination.
Messrs Joshua Aaron Keet, the solicitors for the six mothers, filed their memorandum of appeal early this month.
Lawyer Abraham Au said a case management will be held on April 6 during which the court may fix the final appeal for hearing.
The Federal Court is also expected to hear at the same sitting an appeal brought by another woman, Mahisha Sulaiha, who also lost her lawsuit for a declaration that she was entitled to be a Malaysian citizen.